CHAPTER 4

The Doctrine of State Immunity

Overview

General Rule:
The state may not be sued without its consent. Also known as the “royal prerogative of
dishonesty”, the people can’t question the state.

Exception:
The state may be sued when it gives an expressed or implied consent.

Two types of acts:

1. Jure Imperii
- Sovereign or governmental activities
2. Jure Gestionis
- Commercial, private, and proprietary acts

Two types of theories:

1. Classical or Absolute Theory
- In all cases, a state can’t be sued without its consent.
2. Restrictive Theory
- The state can’t be sued, unless expressly or impliedly waived, with regard to acts related
to its sovereignty or governmental function (jure imperii). However, for commercial,
private, and proprietary acts (jure gestionis), the state can be sued even without its
consent.

Note: The mere entering of a contract by the state does not automatically mean a waiver of its
immunity. The nature of the contract should be tested first.

Two types of consent:

1. Expressed Consent
- Consent given through an enacted law:
a. General Law
a.) Example: Act No. 3083 – state gives its consent to be sued for money
claims involving liability arising from contract; under C.A. No. 327 as
amended by P.D. No. 1445, money claims must be first filed with the
Commission on Audit, which the latter must act within 60 days.
b.) Exception: When personal property has been expropriated by the
government without just compensation, money claims need not be filed
in the COA since the government could not raise state immunity as a
defense to instill injustice to an individual (read Amigable vs. Cuenca).
 b. Special Law
2. Implied Consent
- Consent given through the actions of the state:
a. The state itself commences litigation (including leave for intervention; read
Froilan vs. Pan Oriental Shipping Co.)
a.) Exception: When the state filed a case or for leave for intervention
asserting its state immunity (read Lim vs. Brownell)
b. When it enters into a business contract
a.) A state may have descended to the level of an individual and can thus
be deemed to have tacitly given its consent to be sued when it enters
into a business contract (read CNMEG vs. Sta. Maria)

Suits Against Government Agencies

For suits against government agencies, first step is to determine whether the agency is either
incorporated or unincorporated.

1. Incorporated
- Agency which is created by congress and has a charter of its own that invests it with a
separate juridical personality (e.g. SSS, UP, municipal corporations).

Test of Suability:
a. Charter
b. Nature of the function

If the charter of the agency provides that it can sue and be sued, regardless of the
nature of the function, the agency is not immune from suit. However, if the charter is
silent as to its suability, the nature of the function should be examined. The agency can
then be only sued if it performed jure gestionis acts.

2. Unincorporated
- Agency which has no separate juridical personality but is merged in the general
machinery of the government (e.g. DOF, BOP)

Test of Suability:
a. Nature of the function

If the attacked acts are incidental to the governmental function of the agency, even if
the acts are proprietary in nature, by virtue of the doctrine of implication, the agency
can’t be sued (read Mobil Philippines Exploration, Inc. vs Customs Arrastre Service).
Other Important Points

Basis of the State Immunity:

1. Logical and Practical ground
- There can be no legal right against the authority which makes the law on which the right
depends.
2. Practical Consideration
- The demands and inconvenience of litigation will divert the time and resources of the
state from the more pressing matters demanding its attention, to the prejudice of public
welfare.

Principle of the Sovereign Equality of States

- One state can’t assert jurisdiction over another in violation of the maxim par in parem
non habet imperium. Hence, state immunity is also applicable to foreign States insofar
as they are sought to be sued in the courts of the local State, but only applicable to jure
imperii (read Syquia vs. Almeda Lopez, US vs. Ruiz)

Test to determine whether suit is against the state or the personal capacity of the officer:
1. If the enforcement of the judgment would require an affirmative action from the
government such as the appropriation of the needed amount to satisfy the judgment, the
suit is against the State.
2. If the officer may by himself alone comply with the decision of the court without involving
the State, the suit is against the State.

Note:
1. If the officer acted without or in excess of jurisdiction, any injury caused by him is his own
personal liability and can’t be impleaded against the state (read Republic vs. Sandoval).
2. If the officer acted on behalf of the government, and within the scope of his authority, it is
the government, and not the public officers, that is liable for their acts (read Sanders vs.
Veridiano).

Instances when officers can be sued in their official capacity:

1. To require him to do a duty required by law
2. To restrain him from doing an act alleged to be unconstitutional or illegal
3. To recover from him taxes unlawfully assessed or collected

Suability vs. Liability

1. Suability
- Result of the expressed or implied consent of the State to be sued.
2. Liability
- Determined after hearing on the basis of the relevant laws and the established facts.
- Waiver of immunity does not cover the assumption of liability.